Summary of Finally Adopted Language
The language adopted on December 1, 2020 was the House’s language (which represented a delicate compromise within the House). The effect of this language is that qualified immunity remains a defense for claims against the police. The one exception is when a police officer has been decertified by the newly created POST Commission. Otherwise, the defense is the same and it is judged by existing judicial standards.
Summary of Senate Language (not finally adopted)
The Senate’s Reform-Shift-Build Act would adjust the concept of qualified immunity in civil rights law suits brought in state court to allow the evaluation of whether conduct was reasonable, even in novel cases where the law is not “clearly-established.”
Because no changes are being made in underlying liability or indemnification, police officers will experience little change in their exposure to law suits on a day-to-day basis. However, the changes will facilitate the evolution of constitutional law to address novel situations.
Excessive force cases are governed by the Fourth Amendment to the Constitution, which protects people from “unreasonable” seizures.
The Supreme Court has made clear that “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.”
Diminishing “qualified immunity” will not diminish that fundamental legal deference to the challenge of policing on the streets.
Where “qualified immunity” makes a difference is in the novel case – officer conduct that the courts have never ruled on before. Qualified immunity requires that the legal prohibition on the challenged conduct be “clearly established” in order for a lawsuit to proceed. Sometimes novel cases involve outrageous conduct, yet they are dismissed based on qualified immunity without reaching the question of reasonableness.
Essentially, the senate’s changes would require that a court at least evaluate the reasonableness of the force use. Dismissal based on lack of “clearly established” law means that the court never actually establishes whether the conduct was reasonable. Sometimes repetitive abusive conduct goes unremedied, because each time it is brought forward in a law suit, the courts throw it out because they haven’t ruled on whether it is reasonable, creating a “Catch-22.”
Excessive use of force by police usually breaks clearly established law. Since the changes in qualified immunity would affect only novel cases, the changes will affect few police violence cases. A rigorous study of qualified immunity motions in over 1000 federal civil rights cases found that it resulted in dismissal before trial in only 3.2% of cases.
If our changes to qualified immunity and other changes to the Massachusetts civil rights statute become law, our expectation is that they may result in a shift of some lawsuits from federal court to state court, but that the overall volume of litigation and the resulting financial burden will change only modestly. The few truly novel cases that now escape justice will be properly addressed.
The modest increase in financial burden, if it occurs, will not fall on officers. Agencies who employ law enforcement officers indemnify the officers for judgments entered against them, except in the most egregious cases.
The changes only apply to civil rights law suits. Nothing is changing for the common tort law suits which an officer may be subjected to as a result of automobile or other accidents.
This post explains the changes to the concept of “qualified immunity” that would be made by the Senate’s Reform-Shift-Build Act. For a conceptual overview of the Act as a whole, please see this page. The qualified immunity changes are responsible and overdue.
To properly understand the qualified immunity changes, it is necessary to understand how the changes fit into the larger context of police liability for excessive use of force. This post explains that context at three levels: (a) the underlying liability for excessive use of force; (b) the court process in excessive use of force law suits (where the qualified immunity doctrine allows certain early motions); (c) the indemnification rules which protect individual police officers from financial ruin even if they lose a lawsuit.
Because no changes are being made in underlying liability or indemnification, police officers will experience little change in their exposure to law suits on a day-to-day basis. However, the changes in the qualified immunity rules will facilitate the evolution of constitutional law to address novel situations.
Excessive use of force as a deprivation of constitutional rights
The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .Constitution Annotated.
The Supreme Court of the United States has made clear that the Fourth Amendment limits police use of force in arrests to reasonable force. It is worth quoting Graham vs. Connor, 490 U.S. 386 (1989) at length because it explains how (a) the courts recognize the difficult challenges police officers face in the streets and (b) the courts sharply limit the exposure of police officers to liability. The doctrine of qualified immunity adds little to those underlying limits of liability.
In Graham vs. Connor, police officers treated with apparently unnecessary roughness an African-American diabetic who was experiencing a low blood sugar condition. The court used the case to define the “objective reasonableness” analysis to be used in excessive force cases:
[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, . . . .
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation. . . .
[T]he “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. . . . An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.Graham vs. Connor, 490 U.S. 386, 395-397 (1989) [internal quotations and citations omitted]
The standard defined in Graham vs. Connor has been broadly applied to exonerate police officers accused of excessive use of force. For example, the Department of Justice applied the analysis from Graham vs. Connor to exonerate Darren Wilson, the police officer who shot Michael Brown in Ferguson Missouri. DOJ discussed Graham vs. Connor and concluded that
“the evidence does not establish that the shots fired by Wilson were objectively unreasonable under federal law.”Department of Justice Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson at page 10.
These principles for evaluation of the decision-making of police officers in applying force will not be altered by the limitations on qualified immunity proposed by the Reform-Shift-Build Act.
Civil liability for deprivation of constitutional rights
After the Civil War, the federal government struggled to impose order on the southern states and to protect the rights of freed slaves as citizens. In 1871, congress passed a law to create civil monetary liability of officials who violate the rights of people.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, . . .42. U.S. Code s. 1983 (originally enacted by the civil rights act of April 20, 1871, “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.”). See also predecessor civil rights act of April 9, 1866, An Act to protect all Persons in the United States in their Civil Rights and furn the Means of their Vindication. The earlier act enforced criminal penalties for deprivations of rights “under color of law”.
This provision was at some points referred to as the “Ku Klux Act”, but is most commonly known by its modern statutory section number, §1983. The Supreme Court reviewed the legislative history of the act and made clear in Munroe v. Pape, 365 U.S. 167 (1961) that §1983 liability applies not only to deprivations of rights pursuant to wrongful laws, but to deprivations of rights by persons clothed with the authority of law, for example, police officers.
Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.Munroe v. Pape, 365 U.S. 167, 184 (1961) [citations omitted]
Over the decades since Munroe v. Pape, §1983 has become the primary tool for plaintiffs seeking damages for excessive force by police officers. 42 U.S. Code §1988 allows for the recovery of attorneys fees by a prevailing plaintiff under §1983.
Massachusetts has put in place a state analog to §1983 which also provides for the recovery of attorneys fees in cases of civil rights violations. Chapter 12, Section 11H of the General Laws empowers the Attorney General to seek injunctive relief
[w]henever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth . . ..G.L. c. 12, s. 11H.
Chapter 12, Section 11I allows private parties to recover damages in the same circumstances.
Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in section 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages. Any aggrieved person or persons who prevail in an action authorized by this section shall be entitled to an award of the costs of the litigation and reasonable attorneys’ fees in an amount to be fixed by the court.
Through its reference to Section 11H, Section 11I includes as a predicate for recovering damages that the interference with rights occurred “by threats, intimidation or coercion”. Those words are absent in §1983. In Massachusetts, they have been interpreted to require that the coercion be used as a means towards a further purpose of deprivation of rights, as opposed to being the deprivation of rights in itself.
Conduct, even unlawful conduct, however, lacks [threats, intimidation or coercion] when all it does is take someone’s rights away directly.Longval vs. Commissioner of Correction, 404 Mass 325, 334 (1989)
This interpretation has rendered the Massachusetts Civil Rights Act of little use to plaintiffs in police excessive force cases. One important change made by the proposed Reform-Shift-Build Act in Section 10 (lines 419-429) is to add a new provision to the Massachusetts Civil Rights Act allowing recovery for rights violations without a showing of threats, intimidation or coercion. This will make the state courts a more viable alternative to the federal courts in excessive use of force cases.
Qualified Immunity in Civil Rights Actions
The modern doctrine of qualified immunity was announced in Harlow v. Fitzgerald, 457 U.S. 800 (1982). The case involved the wrongful dismissal of a whistleblower by aides to former President Nixon. The question was the immunity of the aides. The court found that the aides were not absolutely immune from suit but allowed them a qualified immunity and used the case to define the principle of qualified immunity in general terms:
[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
In defining this standard, the court sought to balance considerations of justice for plaintiffs with the social costs of excessive lawsuits:
These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) [citations omitted]
The court contemplated that early in the litigation process, on a motion to dismiss or motion for summary judgment a defendant could secure a finding of the defense of qualified immunity. On that motion,
the judge appropriately may determine not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed.Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
Discovery is the costly and time-intensive exchange of documents and taking of depositions. By foreclosing discovery pending a motion for qualified immunity,the court intended to minimize the cost of improbable law suits. By requiring that applicable law be “clearly established” in order to defeat qualified immunity, the court sought the early termination of law suits on nebulous or novel legal theories. In so doing, it did not provide any new immunity against law suits where the applicable law is clear.
Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action.Harlow v. Fitzgerald, 457 U.S. 800, 819(1982)
The Massachusetts Supreme Judicial Court has determined that the legislature intended that the federal concept of qualified immunity should apply to cases brought under the Massachusetts Civil Rights Act and has followed the concepts of Harlow v. Fitzgerald in providing that immunity:
The Legislature, in enacting the SCRA, intended to adopt the standard of immunity for public officials developed under 42 U.S.C. Section 1983 (1988). Duarte v. Healy, 405 Mass. 43 , 46 (1989). The United States Supreme Court has held that most public officials who exercise discretionary functions are entitled to qualified immunity from liability for damages under Section 1983. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Court in Harlow concluded that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. The Court explained that qualified immunity is a necessary compromise between the need to provide remedies to individuals whose constitutional rights have been violated and the necessity of protecting public officials from “[i]nsubstantial lawsuits” which may deter them from carrying out their official responsibilities. [citations omitted]Rodriques v. Furtado, 410 Mass 878, 881-2 (1991)
A recent case from the federal first circuit of appeals explained the qualified immunity framework. Castagna et al. v. Jean et al., 1st Cir, (Case 19-1677, April 1, 2020, unpublished. The first question in considering a motion for dismissal on grounds of qualified immunity is whether a right was actually violated. This question would necessarily be raised even without reference to the doctrine of qualified immunity. The second question is whether the law defining the right and making the conduct unlawful is “clearly established”. This is the special question when a qualified immunity defense is raised in a §1983 action.
The clearly established inquiry . . . has two elements. The first is focused on whether the law was sufficiently clear such that every reasonable official would understand that what he is doing is unlawful. Qualified immunity is supposed to protect all but the plainly incompetent or those who knowingly violate the law. Because of that, the right that was allegedly violated must be defined in a particularized sense so that the contours of the right are clear to a reasonable official. Existing precedent must have placed the statutory or constitutional question beyond debate. [A] defendant is entitled to qualified immunity where it is at least arguable that the defendant’s actions were constitutional, and where there was no controlling authority or even a consensus of cases of persuasive authority.
The second element focuses on the objective legal reasonableness of an official’s acts and evidence concerning the defendant’s subjective intent is simply irrelevant. This element provides some breathing room for a police officer even if he has made a mistake (albeit a reasonable one) about the lawfulness of his conduct.Castagna et al. v. Jean et al., 1st Cir, (Case 19-1677, April 1, 2020, unpublished) [internal citations, quotations and alternation marks omitted].
The second element of the “clearly established” prong defined by Castagna is redundant since excessive force cases are always judged by “objective reasonableness” which is hard to distinguish in practice from “legal reasonableness”. At least in the context of a police use of force case, the main effect of qualified immunity is to allow dismissal on the first element of the “clearly established” prong: “Existing precedent must have placed the statutory or constitutional question beyond debate.”
Critics of the doctrine of qualified immunity believe that this standard has resulted in too many valid cases in which a violation of rights would be found being dismissed at an early stage.
In short, qualified immunity is an unjust, unnecessary, and unlawful doctrine that the Supreme Court simply made up out of whole cloth. The special safeguard it grants to government defendants is flatly at odds with the plain language of Section 1983 and unsupported by the relevant legal history. Its main practical effects are to deny justice to victims whose rights are violated and to undermine accountability for public officials—especially in law enforcement.Unlawful Shield, A Cato Institute Website Dedicated to Abolishing Qualified Immunity
An alternative criticism of the doctrine suggests that it fails entirely in its purpose to reduce the volume of discovery in civil rights cases. A recent study of 1,183 §1983 cases showed that qualified immunity motions rarely result in the disposal of the case.
In recent years, the Supreme Court has described the driving force behind creation of the qualified immunity doctrine to be resolving insubstantial claims’ against government officials prior to discovery. But qualified immunity resulted in the dismissal of just 0.6% of the cases in my dataset before discovery, and resulted in the dismissal of just 3.2% of the 1,183 cases in my dataset before trial.How Qualified Immunity Fails, Joanna C. Schwartz, Yale Law Journal 127:2 (2017) at page 60.
The small minority of the cases in which a dismissal occurs include those in which the violations are based on a set of facts that the courts have not had the opportunity to opine on and find unconstitutional. By allowing dismissal on the finding that the law is not clearly established, courts avoid applying the law to the novel facts and making determinations as to whether they violate the constitution. This creates a constitutional Catch-22 that can allow repeated violations to go unaddressed by the courts.
The Reform-Shift-Build’s Act Approach to Qualified Immunity
The senate has recognized the the following points apparent from the above discussion:
- Qualified immunity aside, officers are protected from unreasonable lawsuits by the fundamental contours of fourth amendment law.
- Qualified immunity does not actually prevent much waste motion in litigation.
- Qualified immunity is a confusing doctrine that creates a constitutional Catch-22 that prevents the necessary evolution of constitutional law.
Section 10 of the Senate’s Reform-Shift-Build Act provides as follows (relating to claims under the Massachusetts Civil Rights Act):
In an action for monetary damages under this section,
qualified immunity shall not apply unless
no reasonable defendant could have had reason to believe that
such conduct would violate the law at the time the conduct occurred.Section 10 as modified by amendment 121 [lines separated for clarity]
This language is slightly confusing. It provides for qualified immunity when “no reasonable defendant could have had reason to believe that such conduct would violate the law”. This equates roughly to not having qualified immunity when “a reasonable defendant would believe that such conduct would violate the law.” This construct is extremely close to existing law in excessive force cases — it still would allow early dismissal upon a showing of objective reasonableness. The only change is that it omits the alternative lower bar for early dismissal — that existing law does not include a “clearly established” prohibition on the conduct. This will remove the Catch-22 created by that requirement in cases involving novel conduct, even when that conduct is unreasonable and likely unconstitutional.
Most municipalities and agencies who employ law enforcement officers have agreements with the law enforcement officers which provide that they will indemnify the officers for judgments entered against them, except in a few egregious kinds of cases. In fact, a nationwide study found that 99.98% of civil rights settlements and judgments resulting from police misconduct were paid by the employing agencies. Deborah Ramirez, a professor at Northeastern Law School, reports based on her survey of local plaintiffs’ attorneys, that police employers Massachusetts pay all or almost all of the settlements and judgments.
In fact, the general laws specifically authorize this common practice:
Public employers may indemnify public employees, and the commonwealth shall indemnify persons holding office under the constitution, from personal financial loss, all damages and expenses, including legal fees and costs, if any, in an amount not to exceed $1,000,000 arising out of any claim, action, award, compromise, settlement or judgment by reason of an intentional tort, or by reason of any act or omission which constitutes a violation of the civil rights of any person under any federal or state law, if such employee or official or holder of office under the constitution at the time of such intentional tort or such act or omission was acting within the scope of his official duties or employment. No such employee or official, other than a person holding office under the constitution acting within the scope of his official duties or employment, shall be indemnified under this section for violation of any such civil rights if he acted in a grossly negligent, willful or malicious manner. . . .G.L. c. 258, s.9
As to claims against state police officers, the commonwealth is affirmatively committed by statute to pay for the representation and any judgment against the officer.
If, in the event a suit is commenced against a member of the state police or an employee represented by state bargaining unit five, by reason of a claim for damages resulting from an alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law, the commonwealth, at the request of the affected police officer, shall provide for the legal representation of said police officer.
The commonwealth shall indemnify members of the state police or an employee represented by state bargaining unit five, respectively, from all personal financial loss and expenses, including but not limited to legal fees and costs, if any, in an amount not to exceed one million dollars arising out of any claim, action, award, compromise, settlement or judgment resulting from any alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law; provided, however, that this section shall apply only where such alleged intentional tort or alleged act or failure to act occurred within the scope of the official duties of such police officer.G.L. 258, s.9A
No member of the state police or an employee represented by state bargaining unit five shall be indemnified for any violation of federal or state law if such member or employee acted in a wilful, wanton, or malicious manner.
The Senate’s Reform-Shift-Build Act makes no change as to indemnification.
The argument above has been that the change in qualified immunity proposed in the Senate’s Reform-Shift-Build Act will have only modest impact on the volume of judgments or the cost of litigation. Further, if it has any impact, and victims of excessive force are able to recover more damages, those damages will not come from the pockets of police officers, but from the coffers of their employing agencies. The main benefit of the change is that will support the evolution of constitutional law to handle new fact patterns.